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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]
DCR 543/2011
BETWEEN
POLICE
Informant
AND
JOE BAU
Defendant
Madang: J.Kaumi
2011: 13th, 19th May
SUMMARY-Offence of Knowingly in Possession of Dangerous Drugs-Dangerous Drugs Act Chapter 228, Part II, Control of Dangerous Drugs – Section 3 (1) (d).
PRACTICE AND PROCEDURE- Sentence – Offence of Knowingly in Possession of Dangerous Drugs-Dangerous Drugs Act Chapter 228, Part II, Control of Dangerous Drugs – Section 3 (1) (d)
PRACTICE AND PROCEDURE-Mandatory Minimum Penalty of Three Months, Section 3 (1) (d) Dangerous Drug Act-Court to impose the minimum and then suspend or go higher as the justice of the case requires.
PRACTICE AND PROCEDURE- Plea of Guilt- Sentencing is a community responsibility and Courts exercise the people's power by virtue of section 158(1) of the Constitution - Need for proper Guidelines to be followed in the course of deciding appropriate sentence for purposes of Uniformity and Consistency-Appropriate sentence for Drug pushers as opposed to consumers.
A thirty four year old father of one pleaded guilty to being knowingly in possession of a dangerous drug, Cannabis Sativa and matter was for sentence.
Held:
(1).That the minimum penalty does not deprive the Court of its power to give just and fair consideration to each case on its own
merits and impose sentence as the justice of the case requires but not below the minimum. State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
(2).Drug pushers or sellers are a totally different breed and worst type of offenders from consumers and as such deserve to be treated in a manner befitting their status.
Cases cited
Nup v Hambuga [1984] PNGLR 206 N478 (M) (2 August 1984)
Acting Public Prosecutor v Don Hale Sc 564
State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
The State v Irox Winston (21/09/00) N2304
State v Jason Dungoia (13/12/00) N2038
State v Michael Kamban Mani (21/05/02) N2246
Edmund Gima v The State & Siune Arnold v State (03/10/03) SC730
Kovi v The State [2005] SC 789 (31/05/05)Waigani:Injia DCJ,Lenalia&Lay JJ
The State v Raka Benson (2006) CR 447&450
Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J )
Police v Gideon Francis DCR 513/2011
Police v Numan Kanai DCR 517/2011
Police v Ronald Bunap DCR 544/2011
Reference
'Sentences passed on Dangerous Drug Offenders', Magistrates Bi-Annual Judicial Conference in Lae, May 2009, Martin Ipang
Legislation
Constitution of PNG
Dangerous Drug Act Chapter 228
Abbreviations
The following abbreviations appear in the judgment
CHT Chapter
DCA District Courts Act
DDA Dangerous Drug 1952 Act Chapter 228
J Justice
M Magistrate
NC National Court
PNGLR Papua New Guinea Law Reports
S C Supreme Court
SCR Supreme Court Reference
SECT Section
CONST Constable
ST State
SUBS Subsection
V Versus
Counsel
Constable Eugene Wanai for the Police Prosecution.
Defendant in person.
INTRODUCTION
1. Kaumi. M. Joe Bau, you will now be sentenced for an offence contrary to Section 3. 1. (d) of the Dangerous Drug Act ( Hereinafter referred to as DDA)
ARRAIGNMENT
2. When I arraigned you, you pleaded guilty and after confirming the brief facts with you I found you guilty as charged and proceeded to enter a conviction against you.
FACTS
3. That on Thursday 12th of May 2011, at around 9am, the defendant now before the Court namely Joe Bau was at the Lae Builders bus stop in Madang town, Madang Province.
4. On the mentioned date, time and place the defendant was sighted by a Police Motorized Patrol Unit.
5. The defendant was sitting with two friends and they all looked suspicious.
6. Police unit drove straight over to where they were stopping right next to them.
7. The defendant saw the Police unit heading for them and quickly put his hand into his pocket and threw the marijuana wrapped in a pink plastic bag.
8. One of the Police officers counted the number of wrapped marijuana in the pink plastic bag that was retrieved from the drain and there were 21 wrapped rolls of marijuana.
9. So Police put the defendant on the Police patrol unit car and took him to the Police Station.
ANTECEDENTS
10. Your Antecedent Report provided to Court is as follows;-
a. You are a thirty four year old man and married with one child;
b. You are unemployed and live at Finch road;
c. You have no prior convictions.
ALLOCATUS
11. In your address on sentence you stated the followed:
(a) Bikpla susa ibin baim off wanpla haus long Finsh road na em wantem man blo em oli bin dai pinis;
(b) Papa blo mi em aipas, completely blind;
(c ) Mi no wok na mi stap olsem wuasman long kisim papa raon;
(d) Mi marit na igat wanpla pikinini em 13 years old klostu bai stat long skul na nogat man long haus;
(e) Mipla painim hat laif na papa I givim displa 10 packs long mi na tokim mi long painim sampla coins long baim kaikai, em tasol.
12. I take into consideration these above matters when I deliberate your sentence
SUBMISSION BY STATE
13. Constable Wanai made a short verbal submission and a paraphrased summary of his response follows:-
(a.) The conveying, selling and consumption of dangerous drugs in the urban and rural areas of this province is frequently happening and as a consequence offenders were being prosecuted in the District Court everyday;
(b.) Offenders are coming up with all kinds of excuses in an attempt to justify their actions and some like this defendant are using the excuse of selling drugs for a living which should not be accepted by this court;
(c.) Prosecution records show that dangerous drug related offences are prevalent and offenders appear in court every working day of the week there is a need for a deterrent sentence to deter persons who might be harboring notions of selling cannabis for sustenance of life;
OTHER MATTERS OF FACT
14. As the offender has pleaded guilty he will be given the benefit of doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State [1], (Jalina J; Mogish J Cannings.J )
ISSUE
15. These submissions give rise to only one issue for this Court to determine and that is, what the appropriate sentences are in your case.
DECISION MAKING PROCESS
16. To determine the appropriate sentence I will adopt Canning's. J's decision making process in The St v Raka Benson [2] and that is;-
Step 1: what is the maximum penalty prescribed by Parliament?
Step 2: what is a proper starting point?
Step 3: what are the type of sentencing guidelines and trends per judgments for this type of offence?
Step 4: what are the particular circumstances in which you committed this offence from which come the factors in your aggravation as well as those in your mitigation?
Step 5: what is the starting point for the Head sentence for the offence?
Step 6: should all or part of the sentence be suspended?
STEP 1: WHAT IS THE MAXIMUM PENALTY PRESCRIBED BY PARLIAMENT?
17. The offender has been found guilty of an offence contrary to sect 3(1) (d) of the Dangerous Drug Act.
Section 3. PRODUCTION, ETC., OF DANGEROUS DRUGS.
(1) A person who knowingly–
(d) is in possession of or conveys a dangerous drug or a plant or part of a plant from which a dangerous drug can be made,
is guilty of an offence unless he is authorized to do so by or under some other Act.
Penalty: Imprisonment for a term of not less than three months and not exceeding two years.
STEP 2: WHAT IS THE PROPER STARTING POINT?
18. Sentencing guidelines are handed down by the Supreme Court occasionally whilst in the process of deliberating the on criminal appeals or reviews. These guidelines are often coined as a starting point for various types of cases. The National Court then applies those starting point in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances.
19. In the present case I have been unable to locate a suitable precedent so I will use the mandatory minimum penalty of 3 months as the starting point for the offence.
STEP 3: WHAT ARE THE TYPE OF SENTENCING GUIDELINES AND TRENDS PER JUDGEMENT FOR THIS TYPE OF OFFENCE?
SENTENCING TRENDS
20. Ipang.M (as he then was) in his paper 'Sentences passed on Dangerous Drug Offenders' which he presented at the Magistrates Bi-Annual Judicial Conference in Lae in May 2009 obtained statistics from three District Courts for the period 2005 to 2009 and that of the Madang District Court in 2009 which show that the sentencing trend has been more towards imprisonment with a total of 222. This has been followed by Community work with 30, Fines with 14, Probation with 12, Discharge with 6 and GBB with 4.
SENTENCING GUIDELINES
21. In my decision in Police v Gideon Francis [3] I reviewed the statistics provided by Ipang.M (as he then was ) of four District Courts and their sentencing trends, observed and said as follows:-
"I am grateful to Ipang.M (as he then was) for the data he collated however with due respect as enlightening as these statistics might appear to be they fail to set out guidelines as to what are appropriate considerations to be taken on board in arriving at these sentences for this type of offence and there is need for such guidelines for purposes of uniformity and consistency of sentence.
There is a need as well for cases to be published so the sentences and guidelines can be reviewed by the courts to assess the effectiveness of current sentences to see whether they are relevant to the ever increasing magnitude and sophistication of crimes of this nature today, and more importantly whether there is a need for an increase in sentencing".
22. I reiterate here that this country has seen a great proliferation of crimes of this nature so courts must be prepared where necessary to increase sentence in direct correlation to the increase in the magnitude and sophistication of crimes of this nature today.
23. Ostensibly a court has the power to sentence an offender in the absence of guidelines.
24. However for a court to sentence in the absence of guidelines as to what are appropriate considerations to be taken into account when contemplating sentence for this type of offence in our jurisdiction, that would be tantamount to an improper discharging of what Supreme and National courts have said is a 'community responsibility'.(emphasis mine) (Acting Public Prosecutor v. Don Hale [4], Edmund Gima vThe St & Siune Arnold vThe St [5] The State v.Irox Winston [6]
25. In the immediate matter I adopt the sentencing guidelines that I suggested and the reasons for them in Police v Numan Kanai [7] in which I followed Kovi v The State [8] and State v Micheal Kamban [9] and are as follows:-
"... (a).After confirming the guilt of a defendant, either on a plea or after a trial, the Court should consider sentence with the maximum prescribed penalty in mind first;
(b). Then the defendant must be allowed to make out a case for a lesser sentence in allocatus; (A defendant could easily do that by pointing out to the factors in his mitigation with appropriate evidence where evidence is required)
(c ). Once the defendant has been able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. (At this stage, the categorization of the kind of offence under consideration could become relevant and useful)
24. With these qualifications in mind then the following be applied:-
(a). In an uncontested case with ordinary mitigating factors and no aggravating factors and if any two of the seven factors in section 132 (1) are present i.e. student with no priors, 1 to 10 rolls, a starting point of three months and suspension of the said term pursuant to section 132 (1);
(b). In a contested or uncontested case, with mitigating and aggravating factors, 1 up to 70 rolls of cannabis sativa, drug pusher, repeat offender a sentence of 3-8 months imprisonment with no suspension;
( c). In a contested case or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by gravity of the offence, drug pusher, repeat offender and possession of 70 to 150 rolls 7-18 months imprisonment;
(d). In contested or uncontested cases, the imposition of severe punishment or the maximum of 2 years imprisonment should be reserved for the worst case of its kind such as the blatant attempt to illegally traffic large quantities of cannabis in a transnational situation, repeat offender with history of selling large quantities of cannabis or a drug lord etc.
(e). The quantity of drugs should not be the only factor relied upon to determine sentence but should be considered with other factors as well".
STEP 4: WHAT ARE THE PARTICULAR CIRCUMSTANCES IN WHICH YOU COMMITED THE OFFENCE FROM WHICH COME THE FACTORS IN YOUR AGGRAVATION AS WELL AS THOSE IN YOUR MITIGATION?
26. Going by Cannings.J in Raka Benson [10] I have adopted his technique which I consider not only relevant but also pertinent given the lack or absence of relevant guidelines in our jurisdiction and apply to them the seven factors outlined by Bredmeyer.J in Nup v Hambuga [11]
27. These considerations are as follows:
Considerations
1. Was only a small amount of dangerous drug involved? No, there were 21 rolls of cannabis.
2. Did the offender's actions have only a small adverse effect on other persons eg: the members of his family and his community? No, as he indicated in his allocatus that he was very concerned about the welfare of his immediate family and especially his blind father.
3. Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, the offence involved a pre-mediated and cunning plan to sell cannabis and did not take place over a short period.
4. Did the offender give himself up before being detected? No, he was apprehended by alert Police personal and tried futilely to hide the cannabis from Police when he realized that they were on to him.
5. Has the defendant pleaded guilty? Yes, he pleaded guilty
6. Has the offender genuinely expressed remorse? No, his comments were all self centered and he never any expressed genuine remorse for his actions when given the opportunity to do so.
7. Is this the defendant's first offence? Yes.
8. Has the defendant been a good member of his school and the community in which he lives? Neutral, there is no evidence of whether or not he is a good member of his community.
9. Is the defendant a person of good health both physically and mentally? Yes, he was of good health both physically and mentally when he appeared in court on all five occasions.
10. Has the offender and his family already paid a heavy price for his actions? Yes, his wife and child and blind father living in a urban center have obviously suffered hardship as a result of his action.
11. Can the defendant be regarded as a youthful offender? No, he can be regarded as an adult offender.
12. Are there any other circumstances of this particular offence or the offender that warrant mitigation of the head sentence? No, the defendant stated in his allocates that he was in the process of selling the rolls of cannabis.
13. Is this offence not a prevalent one? No, it is a prevalent one
14. Do these types of offences not have an adverse effect on the community at large? No, they do have an adverse effect on the community at large.
Rationale
28. The rational behind the above considerations is as follows:-
(i). an affirmative (yes) answer = mitigating factor;
(ii). a negative (no) answer = an aggravating factor;
(iii). a neutral answer = be a neutral factor;
(iv). more mitigating factors = likely reduction of head sentence;
(v). more aggravating factors = likely lifting of head sentence above starting point.
(vi). sentencing is not an exact science rather it is a discretionary process;
(vii). Mitigating factors may be mild or strong and weighed accordingly;
(viii). Aggravating factors may be mild or strong and weighed accordingly. The St v Raka Benson [12]
Categorization of the listed considerations
29. There are three sorts of considerations listed:
(a). Numbers 1 to 3 focuses on the circumstances of the possession of the cannabis.
(b). Number 4 to 7 focus on what the offender has done since he committed the crime and how he has conducted himself.
(c). Number 8 to 12 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.
STEP 5: WHAT IS THE STARTING POINT FOR THE HEAD SENTENCE FOR THE OFFENCE?
30. The mandatory minimum penalty does not deprive the Court of its power to give just and fair consideration to each case on its own merits and impose sentence as the justice of the case requires but not below the minimum. State v Inema Yawok [13] [1998] N1766 (16/06/1998) Kirriwom.J
31. The mandatory minimum penalty for possession of cannabis is 3 months Imprisonment.
32. After weighing all these factors and bearing in mind that there are four mitigating factors compared to nine aggravating factors and one neutral factor, and going by State v Inema Yawok [14] the head sentence should be the starting point of 3 months.
33. The total potential sentence is three months.
STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?
34. In consideration of whether or not all or part of the head sentence should be suspended I consider some principles of sentencing that are relevant to this issue in the following paragraphs.
35. In Acting Public Prosecutor v. Don Hale [15], the S C said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The S C in that case said "....The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people".
36.Kandakasi.J in St v Jason Dungoia [16] stated that "The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her".
37. To suit the purposes of retribution and rehabilitation sentences should not be too lenient so as to firstly cause a disservice to the community by failing to deter such offenders and secondly to not adequately correspond to the gravity of the offence and having the desired resultant impact on the rehabilitation of the offender.
38. Weighing the factors for and against you, I note that the aggravating factors out weigh those in your mitigation.
39. In highlighting the nationwide problem of drug abuse and its consequences I refer to and adopt my comments in Police v Ronald Bunap [17] at paragraphs 34, 35 and 36 as follows:
"34. The abuse and prevalence of cannabis in the communities of Papua New Guinea (both urban and rural), leave neither unscathed in its wake as it wrecks its havoc upon innocent citizens and non-citizens alike when abused by the youth of this nation giving a whole new meaning to the word 'intoxication', therefore it is incumbent upon the courts to react in kind.
35. One way of arresting the scourge of marijuana is to mete out deterrent sentences and the circumstances of this particular matter demand that this Court exercise the people's sentencing power vested in it by the Constitution and impose a sentence that is in touch with their aspirations and attitudes.
36. Drug pushers or sellers are a totally different breed and worst type of offenders from consumers and as such deserve to be treated in a manner befitting their status and I certainly subscribe to this view that has been stated by the courts and this defendant being no different will be treated as such".
40. The increase in this type of offence all over this country can only mean one thing, that the courts must react in kind.
41. One way of arresting the scourge of marijuana is to mete out deterrent sentences and the circumstances of this particular matter demand that this Court exercise the people's sentencing power vested in it by the Constitution and impose a sentence that is in touch with their aspirations and attitudes.
42. Section 132 subsection (1) is a provision gives a District Court magistrate discretionary dispositive powers where a person is charged with a simple offence, and if the charge is proven in certain circumstances, without proceeding to conviction, to dismiss the charge or give a conditional discharge;
43. However in the circumstances of this matter I find no plausible reason why I should invoke the discretionary dispositive powers of a District Court available to me under section 132 (1) of the District Courts Act.
44. The head sentence should therefore not be suspended in whole or in part as the offence involved 21 rolls of cannabis although it cannot be categorized as being in the worst category of cases.
OTHER RELEVANT CONSIDERATIONS
45. The defendant informed this court in his allocatus that the reason he was trying to sell the drugs was to earn some money to buy food for his blind father and wife and child. There are two things arise out of this statement.
46. Firstly, is the fact that this defendant comes from Kuyembana village in the Bundi District of this province and is not a foreigner. He has land back at Kuyembana village and I cannot understand why he cannot take his blind father and family back there where I am sure he has ample land to plant kaukau, aibika, bananas etc and cocoa and live off the land without having to live in poverty and resort to illegal means to survive in an urban center like Madang. All Papua New Guineans have a village of origin and land holdings and should return there if they have no proper means of livelihood in the urban centers of this nation of ours.
47. Secondly, if I was to accept the defendant's reason for trying to sell drugs I would in effect be condoning the sale of marijuana as a legitimate reason for survival and this is akin to saying, yes, it is alright to rob a bank in order to survive and this is absurd, indeed there are no 'modern- day Robin Hoods'.
48. Whilst this court appreciates the daily plight which the defendant and his blind father undergo to make the ends meet I must also say that it is incumbent upon the court to demonstrate through sentence that it will not accept such anomalous reasons as such being offered by this defendant to justify his actions and in saying this I take on board Constable Wanai's submission on sentence.
49. In the same vein I am also very concerned about the welfare and well being of the defendant's father who is blind and totally reliant on the defendant as his only son, not only for his sustenance but also to assist him move around especially when he needs to relieve himself and this is a strong mitigating factor which plays heavily on my mind when I consider the length of his sentence.
50. One way of showing people that courts are no longer going to accept such anomalous reasons for selling drugs is to mete out deterrent sentences and the circumstances of this particular matter demand that this Court exercise the people's sentencing power vested in it by the Constitution and impose a sentence that is in touch with their aspirations and attitudes.
SENTENCE
51. Joe Bau having been found guilty of knowingly being in possession of a dangerous drug, Cannabis Sativa, you are sentenced in the following manner:
(a.) You are sentenced to three months imprisonment with hard labour;
Police Prosecution for the State
Defendant in Person
[1] SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J
[2] (2006) CR 447&450
[3] DCR 513/2011
[7] DCR 517/2011
[8] [2005] SC 789 (31/05/05)Waigani:Injia DCJ,Lenalia&Lay JJ
[10] Supra Note 2
[11] [1984] PNGLR 206 N478 (M) (2 August 1984)
[12] Supra Note 2
[13] [1998] N1766 (16/06/1998) Kirriwom.J
[14] Supra Note 13
[15] Supra Note 4
[17] DCR 374/2011
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